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Administrative - O'Connor (Third Party Evidence). Gong v. OSC
In Gong v. OSC (Div Court, 2024) the Divisional Court heard a CJA s.21(5) set aside motion of an earlier appeal (dismissed for prematurity) of an interlocutory order of the Capital Markets Tribunal (CMT). While it dismissed the motion on other grounds, the court cited the CMT finding that the 'O'Connor' doctrine (third party evidence disclosure), did not apply where the Capital Markets Tribunal sought to adduce prior criminal disclosure in an OSC proceeding but that evidence was originally generated by the OSC (and then given to Crown):[3] In 2022, the OSC commenced proceedings against Mr. Gong before the Capital Markets Tribunal (“the Tribunal”). The allegations before the Tribunal are similar to the facts admitted by Mr. Gong’s company in the criminal proceedings. There has been no hearing on the merits of the allegations against Mr. Gong.
[4] Mr. Gong brought a pre-hearing motion before the Tribunal arguing that the OSC was required to seek the Attorney General’s consent to use the disclosure from the criminal prosecution in the proceedings before the Tribunal pursuant to the Court of Appeal’s decision in D.P. v. Wagg (2004), 2004 CanLII 39048 (ON CA), 71 O.R. (3d) 229 (CA). The Tribunal dismissed Mr. Gong’s motion. The Tribunal found that the procedure established in D.P. v. Wagg did not apply because the documents the OSC intended to rely on were obtained through the OSC’s own investigation, not from the Crown or police. . Mammarella v. Ontario College of Teachers
In Mammarella v. Ontario College of Teachers (Div Court, 2023) the Divisional Court considered a JR of a tribunal 'rule change' (not of a specific case decision), here of the 'Rules of Procedure of the Discipline and Fitness to Practise Committee' of the Ontario College of Teachers relating to third party evidence disclosure.
In these quotes, the court explains the [O'Connor] purpose of the rule changes:[2] The applicant seeks judicial review of a decision of the Discipline Committee and the Fitness to Practise Committee of the Ontario College of Teachers (“OCT”) to amend Rule 7.03 of the Rules of Procedure of the Discipline and Fitness to Practise Committee. This amendment has the effect of bringing the third party production rule in line with the Supreme Court of Canada decision in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, rather than the test outlined in the Supreme Court’s prior decision in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411.
[3] R. v. O’Connor addressed requested access to a complainant’s medical and other records where the accused was charged with a number of sexual offences. R. v. Mills then addressed the amendments to the Criminal Code that were made on the same issue, after R. v. O’Connor.
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[10] .... The applicant accepts that the OCT can change the rules but submits that this change is different because it imposes a different test for the production of third party records and is unreasonable.
[11] The applicant submits that the rule in R. v. Mills is stricter, limiting access to third party records, and in turn limiting a member’s ability to obtain exculpatory information. The applicant submits that it also should not be applied outside the context of sexual offences yet fails to address the fact that R. v. O’Connor also arose in that context. The applicant relies on the absence of reasons for the Committees’ decision to change the rule. The applicant further challenges the memorandum put forward to the Committees in support of the then proposed change.
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[13] The applicant has not shown that the rule change was unreasonable. On the contrary, it is well within the scope of reasonableness for the third party production rule to be updated to align with a more recent decision of the Supreme Court of Canada and steps taken by other regulators. A regulator has considerable latitude in making rules: Green, at para. 24. The applicant may disagree with the decision. He is of the view that he benefited from the R. v. O’Connor test. But he has not shown that the rule change was not justified, transparent and intelligible.
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